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The Family Law Early Intervention Unit (EIU) is a state-wide specialist service of Legal Aid NSW, funded under the National Partnership Agreement on Legal Assistance Services (NPALAS). Among other services, the EIU provides duty lawyer services (duty services) in a number of Family Law Courts in New South Wales. At the request of Legal Aid NSW, the Law and Justice Foundation of NSW (the Foundation) examined the role and impact of the EIU duty service at the Parramatta Family Law Courts.

The broad goals of Family Law EIU duty services are to:

increase access to earlier, expert legal assistance for self-represented individuals seeking legal help at Family Law Courts in NSW

assist these clients to take timely and appropriate action to progress or resolve their family law matters efficiently and effectively

help reduce the impact of self-represented litigants on the workload of the Family Law Courts.

The key questions addressed in this report are:

Who is assisted by the Family Law EIU duty service?

How does the EIU duty service differ from the previous duty service?

What does the EIU duty service do to assist unrepresented litigants?

Has this assistance made a difference to clients and to the courts?

What features or activities of the EIU duty service contribute to its outcomes?

How does the EIU duty service work as an early intervention strategy?

Who is assisted by the EIU duty service?
This evaluation examined whether the EIU duty service at the Parramatta Family Law Courts was focused on ‘disadvantaged’ Australians, in line with the corporate priorities of Legal Aid NSW and the NPALAS. This question is relevant because duty services are not means tested and, therefore, are open to any person representing themselves at the court. Our assessment is that the EIU duty service does appropriately reach and assist disadvantaged clients, by virtue of:

the placement of the EIU duty service in Family Law Courts, locations where multiple and complex legal and other needs are often dealt with

the location of the Parramatta Family Law Courts, which is geographically accessible to a range of relatively disadvantaged areas, communities and clients

the ‘triage’ function of the EIU duty lawyers, to prioritise matters according to urgency, capacity and need, and tailor legal assistance services accordingly.

How does the EIU duty service differ from the previous duty service?
From 14 March 2011, when the EIU duty service commenced, to 31 March 2012 (a period of 12.5 months), the EIU duty lawyers at the Parramatta Family Law Courts assisted 2070 clients in relation to 2742 matters. With increased hours, more staff and a broader remit, this represented an increase of more than 160 per cent in the volume of duty matters dealt with at the Parramatta Family Law Courts by Legal Aid NSW in the first year of the EIU duty service compared to the year before it commenced. Specifically, this represented an increase from an average of 83 duty matters per month to an average of 219 duty matters per month in its first year of operation.

Without a breakdown of data from the year prior, we cannot analyse whether the of assistance provided differed from what was provided previously. However, a ‘snapshot’ dataset of EIU duty activities and actions, supported by stakeholder interviews, has indicated that work undertaken by the EIU duty service at the Parramatta Family Law Courts is well beyond the scope, guidelines and capacity of the previous duty service, which the EIU duty service replaced.

What did the EIU duty service do to assist clients?

Snapshot data collected by EIU duty lawyers in the months of July and August 2012 has provided insight into the range of activities being undertaken by the EIU duty service.

Bearing in mind that in four out of five matters, clients received more than one type of assistance from the EIU duty service, advice was provided in almost 84 per cent of all matters. Advice was provided to clients who had walked into the court for the first time, having just separated from their partner/spouse, through to clients finalising matters before the court. Some clients were advised on how to proceed with their matter through the courts, while others, particularly those commencing a process that was not appropriate to progress their matter, were redirected to alternative pathways. Of note, in more than one-third of matters seen in the two-month snapshot period (July –August 2102), clients had been seeking to commence an action that was not appropriate to progress their family law matter.

Minor assistance was provided to clients in over 45 per cent of the matters dealt with by the EIU duty service at Parramatta, most commonly in the form of drafting and amending documents. Our interviews indicate that this type of assistance, particularly if provided at the point of filing, may make a material difference to the efficient progress of these matters through court. Representation, provided in 12 per cent of matters, remained a core element of the EIU duty service work and included some complex and time-sensitive matters, such as child recovery and Airport Watch List matters.

The EIU duty service is designed to provide short, timely intervention, rather than ongoing casework or assistance. For this reason, onward referral is seen as a central aspect of the EIU duty work. In the snapshot period, one or more ‘cold referrals’ to another legal or non-legal service was provided to clients in just over half of all matters, while a subset of particularly high-needs clients (in terms of urgent legal need and/or limited capacity) were assisted with ‘warm referral’ to ongoing legal casework in 13 per cent of matters. In nearly all cases, these referrals were provided in addition to advice or other assistance.

What difference has this assistance made to clients and to the courts?

EIU duty lawyers, the judiciary and the staff at the Parramatta Family Law Courts have identified a range of ways in which the EIU duty lawyer has contributed to the effectiveness and efficiency of court processes, not least by diverting matters that should not be in the court, at the point when documents are being filed, and in advising and assisting clients to take the most appropriate course of action. During the two-month snapshot period, duty lawyers recorded that in 14 per cent of all matters, they helped to negate the need for a new court application and in a further three per cent of matters, the application that was before the court was discontinued with their assistance.

Importantly, however, the EIU duty lawyers also assisted clients to their matters through the court. In 12 per cent of matters during the snapshot period, duty lawyers noted that the matter was finalised by the court, following the assistance of the EIU duty lawyers that day. In a further four per cent of matters examined, the matter was finalised by consent. Bearing in mind that a range of factors influence the finalisation of a matter in court, stakeholders reported that the EIU duty lawyers contributed to the resolution of matters by drafting documents that allowed the judicial officer to make a decision on the day, advising the client (including providing a ‘reality check’) so that they could reach an agreement, explaining processes and implications to clients so that judicial officers were confident the unrepresented litigant was appropriately informed, and by negotiating with other parties for the client.

It has been beyond the scope of this study to quantify the benefits of this work, particularly for clients. The study’s scope was limited by the data available when the evaluation commenced and the additional program data that could be collected by the EIU duty service in the timeframe presented. However, the feedback from stakeholders does suggest that the impact of the EIU duty service, particularly on assisting the courts, could be considerable. Any future monitoring should focus on how better to capture data to measure this contribution. A modified version of the data collection sheet piloted for this study (Appendix 1) could assist in achieving this.

Indeed, one of the Foundation’s aims in undertaking this evaluation project for Legal Aid NSW was to highlight the opportunities for evaluation and ongoing data collection that can inform best practice. Ideally, evaluation should form part of planning before a project is established. This will allow for baseline data to be collected and for ongoing data collection in order to measure the differences the project hoped to make. While there were questions, primarily regarding the outcomes of the EIU, that we could not answer, the information collected for this evaluation provides a solid base for future work.

What features or activities of the EIU duty service contribute to its outcomes?

There are several key features of the EIU duty service that appear central to its capacity to assist unrepresented people in the Parramatta Family Law Courts. These are:

its location at the court, for the full day of court, enabling a timely response to assisting clients with their family law needs

the EIU duty service being ‘firewalled’ from the rest of Legal Aid NSW’s files, reducing the scope for conflict of interest and thereby enabling lawyers to assist a greater range of clients

the broad remit and capacity of the unit so that the assistance provided is driven by the immediate needs of the clients

its high calibre staff, in terms of legal skills and experience, maturity and common sense, and the capacity to communicate with and support high-needs clients

the strong relationships built and maintained with the court at all levels (from front desk staff, to registry and judicial officers) which facilitate referrals from these sources to the duty service at any point of the legal process

the capacity to provide warm referrals to legally aided casework, where required.

How does the EIU duty service work as an early intervention strategy?
The EIU duty service fits squarely within the definition of ‘early intervention services’ as stated in its funding agreement, the NPALAS. The EIU duty service assisted some clients early in the life of their family law problem, particularly those who used the Family Law Courts as a first port of call. These clients were provided with advice and, where necessary, referred to alternative pathways to resolution as appropriate. The EIU duty service also intervened early in the life of some legal processes, specifically at the point of filing when a new legal process was being commenced at court.

Equally, however, duty lawyers provided assistance to people whose family law problems remained unresolved, and may have been ongoing for years. They assisted clients who were well advanced in the legal process, but needed assistance to further progress or finalise their matters. They assisted clients for whom family law processes were apparently finalised, only for the issue to resurface. If a service aims to support disadvantaged clients with complex needs, this constitutes important work — irrespective of whether it is ‘early’ intervention or otherwise. This takes us to one of the challenges for the notion of early intervention: the tension between a strategic focus on providing less intensive assistance early and the reality of providing necessary services to a group of clients who are more likely to wait until a crisis has hit before seeking assistance.

Previous research has consistently demonstrated that the types of people who present for ‘early’ assistance may be quite different to those who do not. We know that people with complex needs tend not to seek help until a crisis hits (Coumarelos et al. 2012; Forell, Schetzer & McCarron 2005). In general, if agencies are focused on service provision before the crisis, there is the risk that target clients who ‘don’t come in early’ will be missed. Furthermore, research has identified that disadvantaged clients are less likely than others to have the skills and psychological readiness required to achieve legal resolution on their own or with minimal assistance (Coumarelos et al. 2012, p. 30). These are clients who may require more intensive support than just information or advice — regardless of whatever point their legal matter has reached.

Returning to the EIU duty service, the features that make it work as a legal assistance service for disadvantaged clients are its placement in a site of ‘crisis’ at a time when direct assistance is being sought by clients. Another important feature is its triage function allowing the immediate assessment and prioritisation clients’ matters and needs. The EIU duty service provides timely assistance to high-needs clients exactly when and where it is required. Assistance provided even late in a legal process may be the earliest assistance available to some clients, and this assistance can make a real difference to the progress of their matter thereafter.